Columbia University Legal Group Makes Case for Forcing the Publication of Jack Smith’s Secret Mar-a-Lago Report

The Knight First Amendment Institute at Columbia University has filed a brief to the 11th United States Appeals Circuit on Tuesday arguing for the release of Special Counsel Jack Smith’s final Mar-a-Lago report, underscoring the enduringly explosive nature of the mysterious dispatch. Knight argues in this latest brief that the “common law and First Amendment rights of access attach to” Mr. Smith’s report and that the rationale for suppression of the document has “evaporated.” The 11th Circuit has previously held that the public has a right to view any documents “filed in connection with any substantive pretrial motion, unrelated to discovery.”“The Special Counsel’s report concerns allegations of grave misconduct by President Trump and should be released to the public,” Knight’s senior counsel, Scott Wilkens, tells The New York Sun in an emailed statement. “Every day that the report stays under seal deprives the American public of the information necessary to judge for themselves the character and fitness of the nation’s highest official.” Mr. Trump faced decades in prison if he were convicted of taking classified documents. The publication of the final report on the case against the president was “permanently blocked” by Judge Aileen Cannon in February. The prosecution, which some reckoned to be the strongest of the four criminal ones levied against the 47th president, was dismissed by Judge Cannon in 2024 after she ruled that Mr. Smith was unlawfully appointed by Attorney General Merrick Garland without Senate confirmation. Judge Cannon, a federal trial judge, was appointed by Mr. Trump in 2020 and sits at the Southern District of Florida. She was skeptical of the government’s Espionage Act case against Mr. Trump from the beginning, and imposed strict constraints on how prosecutors could use evidence gathered during the search of Mar-a-Lago conducted in 2022. Mr. Smith appealed her disqualification ruling to the 11th Circuit, but the appeal was dropped when Mr. Trump began his second term.The laws governing special counsels — the so-called “Reno Regulations” after the attorney general, Janet Reno, under whom they were drafted — mandate that special counsels complete a final report at the conclusion of each of their prosecutions. Mr. Smith’s report on his January 6 case against Mr. Trump was published at the end of President Biden’s term. In that dispatch Mr. Smith reckoned that he could have convicted Mr. Trump “but for” the results of the 2024 presidential election.The Reno Regulations delegate to the attorney general the discretion to determine whether releasing a special counsel’s report would serve the “public interest.” When Mr. Smith completed his work, the appeals with respect to Mr. Trump’s co-defendants in the Mar-a-Lago case — the valet Waltine Nauta and the property manager Carlos De Oliveira — were still active. Mr. Garland urged that the report be released only to select lawmakers sworn to secrecy.Judge Cannon, though, blocked the release of the report even after criminal jeopardy had passed for all three defendants. She accused Mr. Smith of engaging in a “brazen stratagem” to complete work on the document even after she disqualified him. She also opined that his report violated the “spirit” of her disqualification order. She stopped short though, of ordering the destruction of the report. That drastic course was urged by Mr. Trump, who proposed “constitutional expungement” — or destruction. The Department of Justice intervened to assert that the report ought to be “consigned to the dustbin of history.” Earlier this year a former prosecutor, Carmen Mercedes Lineberger, was criminally charged with emailing herself copies of the report disguised as “Bundt Cake Recipe” and “Chocolate Cake Recipe.”Knight writes that under the First Amendment “suppression” of the report “must be necessitated by a compelling governmental interest and narrowly tailored to serve it.” While a special counsel report has never been blocked from public view, Judge Cannon observed in her ruling that never before has a public report concerned defendants who were charged but whose cases never reached a jury. Knight, though, reasons that the logic in this circumstance cuts the other way — toward publication. It writes that “where charges were brought and the prosecution of the then-former president ensued, the public has a strong interest in evaluating the Special Counsel’s decision to file charges and to proceed with the prosecution.” Oral arguments before the 11th Circuit on the fate of the report were set for September 28 but have been postponed, with no makeup date announced.

Columbia University Legal Group Makes Case for Forcing the Publication of Jack Smith’s Secret Mar-a-Lago Report

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